Big Saturday Read: Why Amendment No. 2 Fails the Section 328 Test
Alex T. Magaisa
Inspired by Nature
The Mimusa Pudica, also referred to as the sensitive plant, is quite a special plant. When touched by a foreign object, its leaves close instantly, pointing to the ground. In this way, any insect that has landed on it slides and falls off. It also looks lifeless and unappetizing to herbivores. It is a self-defence mechanism called crypsis (camouflage). The behaviour of the Mimusa Pudica is just one of many examples of nature’s response to the foreign invasion which might be a source of harm.
Plants have developed both mechanical and chemical defence mechanisms for self-defence. Mechanical defence systems include growing a thick bark which makes it harder for invasive agents to penetrate or developing thorns, prickles, and spines which make consumption of the plant uncomfortable for herbivores. Anyone who has walked in spaces with stinging nettles knows their way of reminding you that your presence is unwelcome. Some species of acacia plants have an interesting collaborative relationship with ants. The hollow interior of the acacia’s thorns provides a home to ants and in return for this favour, the ants attack and repel invaders that might harm the plant. This is a classic case of mutualism: the acacia tree provides accommodation to the ants while the ants defend the tree from attack.
However, these mechanical defences are not failproof. When they are breached, the second set of chemical defences is activated. This includes the release of toxic compounds that repel or cause harm to the predator. For example, the cassava root produces a substance called glycol cyanide, which is toxic. Some smart plants produce emissions that attract friendly organisms that attack the invading predators. Just like the ants that have a mutual relationship with the acacia plants, these plants may be regarded as “hiring mercenaries” to support their defence when they are under attack.
This amazing behaviour is not limited to plants. There are plenty of similar examples in the animal kingdom, where species have learned to defend themselves from predators using some incredible strategies and tactics. Some have learned to blend seamlessly with their immediate environment, developing a camouflage to prevent easy identification and capture by predators. One of my favourites is the opossum, which literally plays dead when faced with a threat. Pretending to be dead, it emits a morbid smell cementing the impression of death, making it unappetizing and repulsive to a would-be predator. When the coast is clear, the opossum escapes to safety.
What’s nature got to do with it?
Now, you may be wondering what this behaviour of plants and animals has got to do with the Constitution. It is not just an analogy, but to my mind at least, it was an inspiration in the design of section 328 of the Constitution. This is the provision that has mechanisms to protect the Constitution. For the framers, it was important to design a Constitution that had defensive mechanisms to protect it from erosion.
This is because those who have power are usually averse to any constraints that are imposed by constitutions. Those of an authoritarian disposition is always ready to change the constitution to increase their power. It was therefore important to design the constitution in such a way that it would not only be hard but unappealing to make changes. Any changes would have to be necessary. Section 328 is the provision that regulates the procedure by which provisions of the constitution may be changed.
This BSR explains the design of section 328 and in doing so, it demonstrates why the government’s current efforts to amend the Constitution cause incurable illegality specifically regarding the proposed extension of judges’ retirement age. It shows that even if Constitutional Amendment No. 2 is passed into law and the current Chief Justice remains in office beyond his 70th birthday, his legitimacy will always be tainted by illegality. Like plant species that activate defensive mechanisms against foreign invaders, the defensive mechanisms of section 328 are activated by efforts to unlawfully change the Constitution.
Changing the Constitution
The design of the Constitution acknowledges that it is not an immutable document. The framers of the Constitution were aware that they had not created a perfect document. They knew they were some things that may have to be changed in the future for any number of reasons. It could be to correct inadvertent errors, inconsistencies, or points of vagueness discovered during implementation. It might also be that future generations might have different beliefs and values that would necessitate a change in parts of the Constitution. Therefore, the constitutional design makes an allowance for amendments. This is why section 328 exists. It provides for a procedure for amending the Constitution.
However, the framers of the Constitution were mindful of the fact that as the foundational law of the state, it has a special status and it ought to be protected from unnecessary changes. If changing it is too easy, it becomes susceptible to frequent changes that would erode the core structure, values, and principles of the Constitution. This explains why section 328 and other provisions have safeguards to protect the Constitution. For example, the Constitution can only be amended after a constitutional bill has been gazetted for 90 days and there is also a mandatory requirement for public consultations.
The discussion that follows explains more of these constitutional safeguards. It lays the ground for the explanation why the government is wrong in its attempt to extend judges’ term of office without submitting the Bill to a national referendum. It also explains why current judges are not entitled to benefit from the extension of the retirement age because it is an extension of their term of office, which is prohibited by section 328(7) of the Constitution.
The first line of defence of the Constitution is section 2(1) of the Constitution which states that “any law, practice, custom or conduct inconsistent with it is invalid to the extent of inconsistency”. This is a bold declaration of legal supremacy. The Constitution is literally declaring that “I am the King of all laws; there is none above or at par with me”. In this way, the Constitution makes itself the standard against which everything is measured. If a law, practice, or custom does not measure up to the Constitution, it is legally invalid.
Constitutional supremacy is like the thick bark of a tree, but it cannot stop laws from being enacted just like the tree bark can be breached. When that happens, the tree is exposed to the danger of invasive agents and the elements. Other defence mechanisms must kick in to protect the tree. In the case of the Constitution, it makes provision for allies to come to its defence. These allies can approach the courts to challenge the validity of the instrument, which could be a law, custom, practice, or conduct.
This is what MPs Innocent Gonese and Jessie Majome did in 2017. They saw that the Constitution was being illegally amended through Constitutional Amendment No. 1. They approached the Constitutional Court and successfully argued that the amendment was illegal because it did not comply with the provisions of the Constitution. Gonese and Majome were allies of the Constitution who sprung to its defence when they saw that it was being threatened. They relied on the principle of constitutional supremacy to protect the Constitution.
The Declaration of Rights in the Constitution has two types of rights: absolute and qualified rights. Absolute rights are rights that cannot be limited by any law while qualified rights are rights that may be subject to limitations by law if the limitation is fair, reasonable, necessary, and justifiable in a democratic society. Absolute rights are therefore ring-fenced from any amendment, a critical defence mechanism embedded within the Constitution.
An example of an absolute right is freedom from torture, cruel, inhuman, or degrading treatment or punishment. Another is the right to a fair trial. Section 86(3) makes it clear that no law may limit such rights. According to section 87(4)(b) absolute rights cannot be restricted even during a period of public emergency. This means a law that seeks to restrict them is null and void. To return to the metaphor of a self-defending plant, the Constitution emits a toxic substance that kills anything that tries to limit absolute rights.
Requirement for a super-majority
The second type of defence mechanism is that the Constitution can only be amended using a special procedure that is different from the procedure used to enact ordinary legislation. For ordinary legislation, just a simple majority is enough to pass a bill in Parliament. However, if it is a constitutional amendment, section 328(5) requires that it must be approved by a super-majority (at least two-thirds majority of the total membership of the National Assembly and the Senate). It is more onerous to reach the minimum threshold of a two-thirds majority than a simple majority. In this regard, the Constitution emphasizes its special character compared to ordinary legislation.
If this rule is breached, the resulting amendment will be unconstitutional and void. This is the basis upon which the Constitutional Court ruled that Constitutional Amendment No. 1 was invalid when it was approached by Gonese and Majome. The two successfully demonstrated that the special procedure had not been followed which rendered the amendment invalid. To go back to the plant metaphor, the internal defence mechanism of the Constitution kicked in with the help of “ally ants” in the form of Gonese and Majome rendering the amendment illegal.
Ring-fencing and Referendum
Although the requirement for a super-majority is an important defence mechanism, the designers of the Constitution recognized that it was insufficient on its own. There were opportunities for leakages, especially in a case where one party has a two-thirds majority in Parliament. In such a case, the requirement for a super-majority would not be an adequate deterrent against the amendment. To counter this risk, the framers of the Constitution decided to ring-fence certain fundamental areas. This was done by adding another requirement beyond the two-thirds majority threshold: there would have to be a national referendum before an amendment in that area of the Constitution is valid.
A referendum is a mechanism of direct democracy, whereby the citizens have a direct role in making decisions. While representative democracy is the norm, there are instances where some mechanisms of direct democracy are used, and the referendum is one of them. It would ensure that citizens are involved in the decision-making processes of changing key parts of the Constitution, but it is also expensive, difficult, and cumbersome which makes it unattractive. The requirement for a referendum might therefore act as a disincentive to amend the Constitution. It would have to be extremely important and unavoidable to embark on such an amendment in which case there is likely to be justification to make the changes.
So, what are the ring-fenced areas that require a referendum before they can be changed? 4 key areas are ring-fenced in this way and therefore require a national referendum if they are to be changed:
1. The first area is all provisions of Chapter 4 of the Constitution which covers all fundamental rights and freedoms. Section 328(6) of the Constitution provides that a Bill that seeks to change such provisions must be submitted to a national referendum. For example, if the government wants to amend the right to demonstrate and present petitions in section 59, the amendment will have to be submitted to a national referendum.
2. The second area is Chapter 16 of the Constitution which deals with rights to agricultural land. These rights should have been part of Chapter 4 but the bargaining that went on during the negotiations meant a separate chapter was created for them. Any changes must also be submitted to a national referendum per section 328(6) of the Constitution.
3. The third area is term-limit provisions in the Constitution, which is qualified by the provision in section 328(7) that an amendment to a term-limit provision does not benefit any person holding office before the amendment takes effect. The purpose of this provision is to make it unattractive to incumbents to change term-limit provisions. The logic is as follows: If an amendment to a term-limit provision does not benefit the incumbent, he or she would have no motivation to change it. Why would he or she bother? Those who change term-limit provisions usually do so because they are going to benefit from the change. Framers of the Constitution had observed how leaders in other countries were changing term-limit provisions to extend their stay in office.
But while this made changing term-limit provisions unattractive to incumbents, there was still a risk that they could amend section 328(7) using their two-thirds majority in Parliament. Consequently, it became necessary to create another layer of protection which is described below, which is that this provision can only be changed if it is submitted to a referendum.
4. The fourth area that requires a national referendum is amending section 328 itself. This is where the imitation of nature’s defence mechanisms is most evident. After inserting powerful ring-fencing provisions that make it difficult and unappealing to change the Constitution, the framers were faced with one problem: What if a party with a super-majority decides to change the entire provision containing these defence mechanisms with the effect of removing them? In other words, a ruling party with a two-thirds majority in Parliament could easily remove the requirement for a national referendum to change a provision of the Declaration of Rights (section 328(6) or the term-limit protecting provision (section 328(7)). The response to this risk was to ensure section 328 was also ring-fenced.
In this regard, section 328 protects itself in paragraph (9) by stating that it can only be amended by the same procedure used to amend Chapter 4 (Declaration of Rights) which requires a referendum. In other words, any attempt to amend section 328 would have to be approved by a national referendum. It is not enough to have a two-thirds majority in Parliament. Therefore, if the government wants to amend the provision that says the term limit provision cannot benefit incumbents, that amendment would have to be approved by a referendum.
Consequently, section 328 is designed in such a way that not only does it protect special parts of the Constitution, but it is also protecting itself. I now move to demonstrate why the government’s attempt to extend the retirement age of judges without submitting the amendment to a referendum is incurably illegal.
Term-Limit provision: Why the government’s move is illegal
The government wants to amend provisions of section 186 which set the mandatory retirement age of judges at 70 years. It wants to raise the retirement age to 75 years. A judge who reaches the age of 70 will be able to renew his or her contract on an annual basis. The principal question that arises is whether this is an amendment of a term-limit provision because if it is, then it cannot benefit the current judges. You should know by now that section 328(7) prevent who has held that office before the amendment.
The Minister of Justice, Legal and Parliamentary Affairs who is sponsoring the amendment has told Parliament that it is not a term limit provision. He argues that it is an age limit provision. In his view, there is a distinction between the term limit provision and the age limit provision. Based on this distinction, he argued that the government was raising the age limit but not affecting the term limit. The Minister’s reasoning is deeply flawed and the attempt to distinguish a term limit and an age limit provision are fallacious.
The first port of call is the definition of a “term-limit provision” which is provided for in section 328. Neither the Minister nor the Senators referred to this definition but it would have solved the problem and demonstrated the flaws in the Minister’s argument. Section 328 defines a term-limit provision as “a provision of this Constitution which limits the length of time that a person may hold or occupy a public office”. The office of a judge is a “public office” which is defined in section 344 of the Constitution as “a paid office in the service of the State”. But is judge’s time in office subject to a term-limit and if so, what is the term-limit?
Under section 186, the current length of time that a person may hold or occupy the office of a judge is up to 70 years. In other words, section 186 limits the length of time that a person may hold or occupy the office of a judge. Therefore, section 186 qualifies as a term-limit provision as defined in section 328. Unfortunately, none of the MPs or Senators seem to have drawn the attention of the Minister to the definition of a term-limit provision in section 328. This allowed the Minister to get away with the fallacious distinction between “term limit” and “age limit”. He argued that what he was raising was the age-limit of judges, not the term-limit when in fact the two are reconcilable because the term-limit of a judge is defined by age. The Minister is oblivious of the fact that the provision restricting a judge’s tenure of office to 70 years of age is a term-limit provision as defined in section 328 of the Constitution.
If the retirement age is raised to 75 years as proposed, it has the effect of extending the length of time that a person may hold or occupy the office of a judge. This is precisely what is covered in section 328(7). It states that an amendment that extends the length of time that a person may hold or occupy public office does not apply to any person who holds or held office before the amendment. Therefore, even if the retirement age is raised to 75 years, the current Chief Justice and other judges cannot benefit from it. They must retire at 70. To allow them to remain in office beyond the age of 70 would be a breach of section 328(7) and an indirect and unlawful amendment of the same provision. The Constitution is very clear in section 328(2) that any amendment to its terms must be done in express terms. If the government wants to amend section 328(7) and allow the extension of term-limits to benefit incumbents, then it must do so in express terms.
The Minister introduced a proviso to the amendments to section 186 to say that the amendment does not affect section 328(7), but this is effectively an indirect admission of guilt that what the government is doing is wrong. He argued that it is for clarification and interpretation, which is a spurious argument. The fact of the matter is that section 186 is a term-limit provision as defined by section 328 and any changes to it cannot benefit the incumbents. As it is, it is pushing an indirect and surreptitious amendment of section 328 and by so doing is setting a dangerous precedent and destroying the defensive mechanism embedded in the Constitution.
Unfortunately, the Chief Justice and the judges, the last line in the defence of the Constitution, are interested parties in all this because they are the beneficiaries of the extension of their term limits. This is a big problem when the last line of defence is conflicted. Can they be trusted to interpret the Constitution fairly and impartially when they are the beneficiaries? This is precisely why section 328(7) prohibits incumbents from benefitting from term-limits extensions. Self-interest will prevail over reason. Section 328 may have been beautifully designed, mimicking as it does, nature’s self-defensive mechanisms, but ultimately it is at the mercy of human agents. Ultimately, the only penalty is that judges who remain in office under this amendment will forever be tainted with the stain of illegality and illegitimacy.
When I started this article, I alluded to the genius of nature’s self-defence systems, how plants and animals have evolved to deal with threats. The Constitution has important defence mechanisms. The extension of judicial officers’ terms without going to a national referendum leads to incurable illegality and illegitimacy of judges who benefit from the extension. There is nothing the government can do to heal the wound unless it complies with the requirements of section 328. If Chief Justice Malaba remains in office under the second amendment it will be a sham appointment and he will be a Chief Justice bereft of legitimacy. It is hard to see his peers taking him seriously with that stain.
Some plants emit compounds that poison the invading parasite. Section 328 has a fatal dose to any amendment that seeks to extend the term of office of a public officer to benefit an incumbent. It is illegal because of the self-defence mechanism in section 328(7). They might force their way and stay in office but they will not have legitimacy. It will be very difficult to take Zimbabwe seriously in the community of nations, in the rule of law index, and other indices when it has an illegitimate head of the judiciary. How could a judiciary that is founded on illegality be expected to defend and uphold the Constitution? How can a judiciary that is birthed in circumstances of constitutional violation cannot be trusted with the Constitution. The honourable thing is to say no to the illegality that is being pushed through Parliament. But perhaps this is too big an expectation.